A novel approach to undermining Roe v. Wade created by Texas legislators went into effect last week, prohibiting abortions after about six weeks of pregnancy. Unlike all other so-called “heartbeat bills,” meant to ban abortions after electrical activity that sounds like a heartbeat is detected via ultrasound, Texas Senate Bill 8 delegates enforcement to all state residents. Private citizens can now sue an abortion provider or anyone who “aids and abets” abortions after the sixth week of pregnancy. Successful plaintiffs are awarded “statutory damages” of at least $10,000 — a bounty, in other words.

Senate Bill 8, introduced in March 2021, was co-sponsored by 91 members of the Texas legislature. It passed the State House and Senate along party lines and was signed into law by Gov. Greg Abbott (R) on May 19. “Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion,” Abbott said at the bill signing ceremony. The Texas legislature, he said, “worked together on a bipartisan basis to pass a bill that I’m about to sign that ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.”

Abortion providers submitted an emergency application to the Supreme Court, asking the justices to block enforcement of the law while litigation over its constitutionality proceeds in the lower courts. The Supreme Court ruled 5-4 not to intervene. The majority – made up of Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett – ruled that the abortion providers failed to address “complex and novel antecedent procedural questions.” They did not opine on the constitutionality of the law, which must be litigated through the lower courts.

Chief Justice John Roberts joined Justices Stephen Breyer and Elena Kagan in dissent, highlighting the true purpose of the law’s enforcement mechanism:

The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.

Justice Sonya Sotomayor concurred in a separate dissent: 

No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law. The Texas Legislature was well aware of this binding precedent. To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not… In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.

Tort reform

As the Supreme Court’s dissenters stated, SB 8 deputizes citizens to unconstitutionally restrict women’s right to abortion on the state’s behalf. The political right endorses this tactic, turning decades of conservative thought about tort reform on its head. 

US tort law allows individuals to sue one another to redress injuries that were intentionally or negligently caused by someone else. Sometimes the law allows for civil suits even when the injuries weren’t intentionally or negligently caused. All of these suits are referred to as “tort law.”  An injury does not have to be physical; emotional distress or a violation of personal rights are also viable claims. An injured party can bring a lawsuit to obtain compensation.

Typically, only a person who has incurred personal harm can sue someone else. SB 8, however, allows all state residents to bring a lawsuit against abortion providers or anyone “aiding and abetting” an abortion after the six-week mark. The result will undoubtedly be a flood of litigation brought by those seeking the $10,000 pay-out, clogging up the court system and burying abortion providers in legal costs.

Up until this point, Republicans have generally sought to limit tort-based lawsuits. For example, in 2017 federal Republicans advanced a bill that would make it more difficult to bring medical malpractice suits and another to further regulate who can join class-action lawsuits. The same Texas Republicans who blew the door wide open on abortion litigation also shielded commercial vehicle companies from liability after an auto crash and exempted many companies from liability for exposing others to Covid-19.

Texans for Lawsuit Reform

Texans for Lawsuit Reform (TLR) is at the forefront of Texas’ movement to reform civil litigation along conservative lines. According to their website, TLR members “want the civil justice system to be efficient and fair,” citing those who have had to “abandon their chosen professions because of the emotional and financial toll imposed by legal assaults.”

TLR’s objective is to keep litigation in its traditional and appropriate role in our society. A lawsuit takes a heavy emotional and financial toll on participants, and therefore should be the remedy of last resort to resolve disputes between parties. A lawsuit should not be used to obtain “windfall” riches for a lawyer and his client.

TLR’s Political Action Committee, which raises and spends money in elections, cites as one of its goals:

TLRPAC works to elect Texas leaders and lawmakers who understand the importance of maintaining the historic civil justice reforms that are strengthening the Texas economy and ensuring access to health care throughout the state.

With all this in mind, it is particularly notable that TLR has donated over $14.5 million to all but one of the sponsors of Texas’ new abortion law. More than half of these donations were made during the 2020 election, just months before SB 8 was first introduced. The only other organizations that have given as much money, as consistently, to SB 8 sponsors are party committees and leadership PACs.

Donations to SB 8 sponsors from Texans for Lawsuit Reform (TLR)

Sponsor	TLR Donations
Rep. Andrew Murr	$23,050
Rep. Ben Leman	$53,543
Rep. Brad Buckley	$516,257
Rep. Briscoe Cain	$49,263
Rep. Brooks Landgraf	$33,500
Rep. Bryan Slaton	$2,500
Rep. Candy Noble	$13,500
Rep. Cecil Bell	$14,500
Rep. Charles Anderson	$445,084
Rep. Chris Paddie	$22,004
Rep. Cody Harris	$17,500
Rep. Cody Vasut	$17,281
Rep. Cole Hefner	$17,500
Rep. Craig Goldman	$289,196
Rep. Dan Huberty	$85,000
Rep. David Cook	$234,912
Rep. David Spiller	$0
Rep. Dennis Paul	$67,310
Rep. Dewayne Burns	$45,049
Rep. Drew Darby	$65,611
Rep. Dustin Burrows	$35,144
Rep. Ed Thompson	$32,391
Rep. Ernest Bailes	$72,932
Rep. Four Price	$45,565
Rep. Gary Gates	$10,000
Rep. Gary Vandeaver	$14,536
Rep. Giovanni Capriglione	$316,814
Rep. Glenn Rogers	$12,500
Rep. Greg Bonnen	$57,000
Rep. Hugh Shine	$30,500
Rep. J.M. Lozano	$554,961
Rep. Jacey Jetton	$640,873
Rep. Jake Ellzey	$83,839
Rep. James Frank	$21,500
Rep. James White	$499,893
Rep. Jared Patterson	$64,325
Rep. Jay Dean	$35,000
Rep. Jeff Cason	$26,250
Rep. Jeff Leach	$1,069,931
Rep. Jim Murphy	$113,174
Rep. John Cyrier	$39,495
Rep. John Frullo	$71,512
Rep. John Kuempel	$19,500
Rep. John Raney	$68,031
Rep. Justin Holland	$15,500
Rep. Keith Bell	$15,000
Rep. Ken King	$24,000
Rep. Kyle Biedermann	$20,000
Rep. Lacey Hull	$645,343
Rep. Lynn Stucky	$234,336
Rep. Matt Krause	$251,843
Rep. Matt Schaefer	$20,162
Rep. Matthew Shaheen	$671,251
Rep. Mayes Middleton	$22,500
Rep. Mike Schofield	$567,952
Rep. Phil King	$86,640
Rep. Phil Stephenson	$39,532
Rep. Reggie Smith	$60,589
Rep. Sam Harless	$202,163
Rep. Scott Sanford	$20,504
Rep. Shelby Slawson	$10,000
Rep. Stan Lambert	$36,000
Rep. Stephanie Klick	$29,000
Rep. Stephen Allison	$685,239
Rep. Steve Toth	$24,000
Rep. Tan Parker	$48,000
Rep. Terry Wilson	$18,500
Rep. Todd Hunter	$184,603
Rep. Tom Oliverson	$21,500
Rep. Tony Tinderholt	$157,000
Rep. Travis Clardy	$27,262
Rep. Trent Ashby	$24,500
Rep. Valoree Swanson	$37,533
Rep. William Metcalf	$20,319
Sen. Angela Paxton	$90,000
Sen. Bob Hall	$71,000
Sen. Brian Birdwell	$117,500
Sen. Bryan Hughes	$357,372
Sen. Charles Brandon Creighton	$219,500
Sen. Charles Perry	$245,364
Sen. Charles Schwertner	$98,007
Sen. Dawn Buckingham	$55,000
Sen. Donna Campbell	$248,275
Sen. Drew Springer	$86,137
Sen. Eddie Lucio Jr	$658,914
Sen. Jane Nelson	$78,500
Sen. Joan Huffman	$460,538
Sen. Kelly Hancock	$407,336
Sen. Larry Taylor	$1,064,079
Sen. Lois Kolkhorst	$88,000
Sen. Paul Bettencourt	$37,430
Grand Total	$14,551,949

Additionally, Co-founder and Senior Chairman of the TLR Board of Directors Dick Weekley has donated nearly $1.1 million to all but three of the bill’s sponsors.

Donations to SB 8 sponsors from Richard Weekley

Sponsor	Donations from Richard Weekley
Rep. Andrew Murr	$12,500
Rep. Ben Leman	$4,500
Rep. Brad Buckley	$5,000
Rep. Briscoe Cain	$9,000
Rep. Brooks Landgraf	$10,500
Rep. Bryan Slaton	$0
Rep. Candy Noble	$3,500
Rep. Cecil Bell	$3,000
Rep. Charles Anderson	$3,500
Rep. Chris Paddie	$7,000
Rep. Cody Harris	$5,000
Rep. Cody Vasut	$1,000
Rep. Cole Hefner	$2,500
Rep. Craig Goldman	$21,000
Rep. Dan Huberty	$12,500
Rep. David Cook	$5,000
Rep. David Spiller	$0
Rep. Dennis Paul	$10,000
Rep. Dewayne Burns	$11,000
Rep. Drew Darby	$11,000
Rep. Dustin Burrows	$8,000
Rep. Ed Thompson	$7,000
Rep. Ernest Bailes	$3,000
Rep. Four Price	$15,000
Rep. Gary Gates	$0
Rep. Gary Vandeaver	$3,000
Rep. Giovanni Capriglione	$7,000
Rep. Glenn Rogers	$2,500
Rep. Greg Bonnen	$26,500
Rep. Hugh Shine	$2,000
Rep. J.M. Lozano	$15,000
Rep. Jacey Jetton	$10,000
Rep. Jake Ellzey	$2,500
Rep. James Frank	$8,500
Rep. James White	$12,500
Rep. Jared Patterson	$3,500
Rep. Jay Dean	$4,500
Rep. Jeff Cason	$10,000
Rep. Jeff Leach	$14,500
Rep. Jim Murphy	$12,000
Rep. John Cyrier	$12,000
Rep. John Frullo	$12,000
Rep. John Kuempel	$8,500
Rep. John Raney	$6,000
Rep. Justin Holland	$1,000
Rep. Keith Bell	$3,500
Rep. Ken King	$11,000
Rep. Kyle Biedermann	$4,500
Rep. Lacey Hull	$10,000
Rep. Lynn Stucky	$9,500
Rep. Matt Krause	$8,500
Rep. Matt Schaefer	$4,000
Rep. Matthew Shaheen	$7,500
Rep. Mayes Middleton	$7,500
Rep. Mike Schofield	$24,000
Rep. Phil King	$19,000
Rep. Phil Stephenson	$4,500
Rep. Reggie Smith	$5,000
Rep. Sam Harless	$7,500
Rep. Scott Sanford	$5,500
Rep. Shelby Slawson	$1,000
Rep. Stan Lambert	$7,000
Rep. Stephanie Klick	$5,000
Rep. Stephen Allison	$5,000
Rep. Steve Toth	$4,500
Rep. Tan Parker	$12,500
Rep. Terry Wilson	$3,000
Rep. Todd Hunter	$41,000
Rep. Tom Oliverson	$10,000
Rep. Tony Tinderholt	$6,000
Rep. Travis Clardy	$4,500
Rep. Trent Ashby	$7,500
Rep. Valoree Swanson	$4,000
Rep. William Metcalf	$4,500
Sen. Angela Paxton	$10,000
Sen. Bob Hall	$22,500
Sen. Brian Birdwell	$20,000
Sen. Bryan Hughes	$30,000
Sen. Charles Brandon Creighton	$38,500
Sen. Charles Perry	$40,000
Sen. Charles Schwertner	$21,000
Sen. Dawn Buckingham	$35,000
Sen. Donna Campbell	$10,000
Sen. Drew Springer	$4,000
Sen. Eddie Lucio Jr	$77,804
Sen. Jane Nelson	$31,000
Sen. Joan Huffman	$35,000
Sen. Kelly Hancock	$24,000
Sen. Larry Taylor	$45,500
Sen. Lois Kolkhorst	$32,000
Sen. Paul Bettencourt	$23,500
Grand Total	$1,090,804

Texas Medical Association

The Texas Medical Association (TMA) is a nonprofit organization representing over 55,000 physicians and medical students. Members pay up to $573 a year in dues to support TMA’s goals:

Vision: To improve the health of all Texans

Mission: TMA stands up for Texas physicians by providing distinctive solutions to the challenges they encounter in the care of patients.

Following the Supreme Court’s decision not to block Texas’ abortion law, TMA issued a statement denouncing SB 8 and expressing shock that it was allowed to take effect:

The physicians of Texas never thought the day would come when the performance of our oath would create a private cause of action for persons not connected to or harmed by the action. Yet, that day has sadly arrived in the state we love. TMA is shocked the U.S. Supreme Court so far has not stopped the provisions of SB 8 that create a scheme of deputizing private citizens to carry out what the state itself cannot do, due to U.S. constitutional restrictions… Clearly these provisions are unconstitutional, in our opinion. TMA stands for the health care of all Texans and our profession. 

Given such a strong statement, it would follow that TMA must also oppose the lawmakers who passed SB 8. On the contrary, the Texas Medical Association has given nearly $1.8 million to the bill’s sponsors. 

Donations to SB 8 sponsors from the Texas Medical Association

Sponsor	TMA Donations
Rep. Andrew Murr	$9,564
Rep. Ben Leman	$7,657
Rep. Brad Buckley	$5,750
Rep. Briscoe Cain	$0
Rep. Brooks Landgraf	$6,294
Rep. Bryan Slaton	$0
Rep. Candy Noble	$250
Rep. Cecil Bell	$1,250
Rep. Charles Anderson	$9,089
Rep. Chris Paddie	$21,069
Rep. Cody Harris	$19,712
Rep. Cody Vasut	$2,500
Rep. Cole Hefner	$1,003
Rep. Craig Goldman	$3,521
Rep. Dan Huberty	$14,450
Rep. David Cook	$0
Rep. David Spiller	$0
Rep. Dennis Paul	$4,500
Rep. Dewayne Burns	$21,306
Rep. Drew Darby	$22,206
Rep. Dustin Burrows	$250
Rep. Ed Thompson	$4,000
Rep. Ernest Bailes	$29,193
Rep. Four Price	$49,327
Rep. Gary Gates	$0
Rep. Gary Vandeaver	$9,442
Rep. Giovanni Capriglione	$13,521
Rep. Glenn Rogers	$7,003
Rep. Greg Bonnen	$136,306
Rep. Hugh Shine	$15,924
Rep. J.M. Lozano	$17,000
Rep. Jacey Jetton	$600
Rep. Jake Ellzey	$1,500
Rep. James Frank	$1,250
Rep. James White	$2,000
Rep. Jared Patterson	$0
Rep. Jay Dean	$12,250
Rep. Jeff Cason	$2,700
Rep. Jeff Leach	$1,512
Rep. Jim Murphy	$11,023
Rep. John Cyrier	$12,780
Rep. John Frullo	$19,000
Rep. John Kuempel	$7,954
Rep. John Raney	$13,779
Rep. Justin Holland	$11,536
Rep. Keith Bell	$21,507
Rep. Ken King	$15,595
Rep. Kyle Biedermann	$0
Rep. Lacey Hull	$2,500
Rep. Lynn Stucky	$44,462
Rep. Matt Krause	$504
Rep. Matt Schaefer	$0
Rep. Matthew Shaheen	$250
Rep. Mayes Middleton	$250
Rep. Mike Schofield	$2,250
Rep. Phil King	$13,008
Rep. Phil Stephenson	$1,250
Rep. Reggie Smith	$8,408
Rep. Sam Harless	$500
Rep. Scott Sanford	$3,508
Rep. Shelby Slawson	$4,000
Rep. Stan Lambert	$6,934
Rep. Stephanie Klick	$1,500
Rep. Stephen Allison	$22,000
Rep. Steve Toth	$0
Rep. Tan Parker	$10,532
Rep. Terry Wilson	$0
Rep. Todd Hunter	$48,188
Rep. Tom Oliverson	$59,000
Rep. Tony Tinderholt	$0
Rep. Travis Clardy	$9,567
Rep. Trent Ashby	$17,701
Rep. Valoree Swanson	$0
Rep. William Metcalf	$12,444
Sen. Angela Paxton	$11,217
Sen. Bob Hall	$0
Sen. Brian Birdwell	$23,500
Sen. Bryan Hughes	$20,837
Sen. Charles Brandon Creighton	$67,888
Sen. Charles Perry	$13,000
Sen. Charles Schwertner	$177,252
Sen. Dawn Buckingham	$79,499
Sen. Donna Campbell	$60,500
Sen. Drew Springer	$10,876
Sen. Eddie Lucio Jr	$48,994
Sen. Jane Nelson	$266,414
Sen. Joan Huffman	$45,561
Sen. Kelly Hancock	$30,950
Sen. Larry Taylor	$33,750
Sen. Lois Kolkhorst	$51,045
Sen. Paul Bettencourt	$4,000
Grand Total	$1,781,112

TMA cannot argue it was unaware of the sponsors’ anti-abortion stances prior to the 2020 election, as 61 of the 91 lawmakers also sponsored a bill banning the use of dilation and evacuation abortions (Image x), the most common method for abortions provided after 12 weeks of pregnancy. Additionally, nearly half of the 40 sponsors who were in office at the time sponsored a 2013 bill that led to the closure of 23 abortion clinics, leaving just 19 to serve the state’s 7 million women of reproductive age.

TMA does not include any mention of abortion rights on its 2021 legislative priorities page. If the association is serious about its opposition to assaults on women’s health and autonomy, the group should probably stop funding lawmakers leading the charge and should publicly advocate for abortion rights before a harmful bill — like SB 8 — is passed by the legislature.

“It is true that TMA did not testify on either bill,” [Brent Annear, TMA spokesman] said in a statement. “Our advocacy does not solely occur in public legislative testimony, however; sometimes it occurs in private conversations with lawmakers. TMA has no policy regarding abortion; we have members whose opinions are on both sides of the issue.”

The lone Democrat

Of SB 8’s 91 sponsors, all were Republicans… except for one: Sen. Eddie Lucio, Jr., a Democrat representing State Senate District 27 since 1991. The 27th District spans from the US-Mexico border to Kingsville, Texas, and is home to over 786,000 people. According to the most recent estimate (2015-2019), Lucio’s district is 91% Hispanic and 8% white. 16.8% of the population “does not speak English well or at all,” 29.8% live at or below the poverty level, and 33% of adults under 64 years old did not work in at least a year (pre-pandemic).

Lucio’s constituents will be particularly impacted by SB 8. According to an analysis by the Center for Reproductive Rights, the closure of clinics after the state’s 2013 abortion law forced Latinas “to travel long distances to access abortion care — in some cases exceeding 200 miles to the nearest clinic.” Combined with high unemployment and poverty rates, anti-abortion policies in Texas contribute to an unintended pregnancy rate two times higher for Latinas than white women. 

The Guttmacher Institute found that SB 8 will cause a 20-fold increase in the distance women must travel to obtain an abortion. For the poor, the cost will be prohibitive:

Just looking at the average increase in distance alone, someone making minimum wage ($7.25 an hour in Texas) would have to put more than 3.5 hours’ worth of earnings toward the cost of gas to cover the additional one-way cost of travel…That amounts to a full day’s earnings solely to pay for the additional amount of gas for each round trip. For anyone traveling to a state that requires multiple trips to an abortion provider, the financial burden is even higher. Beyond the cost of gas, a person who needs to travel for an abortion may also have to factor in lodging, child care, lost wages from time off work and other logistical expenses, in addition to the cost of the abortion.

Both Oklahoma and Louisiana, two of Texas’ three neighboring states, have mandatory waiting periods between a consultation and an abortion, adding to the time and money needed to get the procedure.

As a result, SB 8 becomes a ban on abortions for all but the rich. Lucio, representing a district in which a third of residents live below the poverty level, has done his constituents an extreme disservice in sponsoring this law.

The next anti-abortion bill

Texas Republicans, not satisfied with banning virtually all abortions in their state, have already passed another anti-abortion bill. Senate Bill 4 moves up the deadline for medication-based abortion from 10 weeks of pregnancy to the seventh week. All of the 79 sponsors of SB 4 also sponsored SB 8. With nothing standing in its way other than Gov. Abbott’s signature, SB 4 is almost sure to become law.

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